San Juan Capistrano retreats on news-rack ban

San Juan Capistrano’s City Council approved a plan Tuesday to return news racks to two public properties, but that might not be enough to halt a lawsuit filed on behalf of an activist newspaper long critical of City Hall.

Representatives of Community Common Sense want city officials to agree not to continue citing the city's antilittering law as a reason for them not to place papers on public property, Editor Kim Lefner said. They also want City Hall to rescind a Sept. 24 letter from City Attorney Hans Van Ligten that threatened to prosecute them.

But Mayor Sam Allevato didn't mention those issues when he announced that the council had voted in closed session to allow Common Sense and other publications to temporarily place racks at City Hall and the Community Center. He also indicated the court battle isn't over, saying the placements are allowed until a judge issues a ruling or the council adopts new regulations, which are being studied by city staff.

Allevato told the Register the issues are "workable."

"I look forward to reaching a good resolution. I really do," he said.

The new rack locations identified in the deal are feet from the original sites but farther from the main walkways to the buildings.

Lawyers are scheduled to appear Thursday in Santa Ana before Orange County Superior Court Judge James Di Cesare, who presided over a hearing last week in which city officials retreated from a move that banned news racks from the two properties.

Di Cesare had asked the lawyers to try to work something out instead of considering a request by Laguna Hills lawyer Wayne Tate, who represents Common Sense, to order the city to allow news racks at the properties immediately. Van Ligten and lawyer Philip Kohn spent nearly three hours working out the deal with Tate.

The dispute began when the City Council voted 3-1 in a closed meeting Aug. 6, with Roy Byrnes dissenting and Derek Reeve abstaining, to remove news racks from the properties. The vote, confirmed by Byrnes in a signed declaration included in new court documents, occurred four days after Common Sense representatives placed racks at the locations. Associates of the publication are involved in an attempt to recall Allevato.

The Capistrano Dispatch and Capistrano Valley News stopped distributing at the locations, but Common Sense representatives still placed papers there, noting the order mentioned news racks, not newspapers. That prompted Van Ligten to mail Common Sense representatives a letter reiterating the ban and informing them that they were prohibited from placing their papers on any city property.

Kohn backtracked from that statement in court last week, saying Van Ligten didn't mean the newspapers couldn't be distributed anywhere.

"They simply, to this date, have not asked for permission to do so," said Kohn, who works with Van Ligten at the law firm Rutan & Tucker in Costa Mesa.

Kohn also said city officials' concerns are that the racks were near public walkways at City Hall, not the distribution of newspapers in general.

Di Cesare directed the lawyers to try to negotiate after Kohn confirmed that the ban also applied to the Community Center.

The judge didn’t give an opinion about the ban, but First Amendment experts believe it is illegal because it removed papers from a public forum, possibly in response to the content of one publication. Cities can regulate the design of news racks, but once a location has them, it's difficult to justify removing them, experts say.

Van Ligten last week dismissed any suggestion that the deal means city officials were wrong when they banned the racks.

"Whenever you're facing ligation … you negotiate," he said. "Even if you believe your position is correct."

Reeve did not participate in Tuesday's closed session because he sometimes works as an attorney for Common Sense. Byrnes declined to participate and wrote Allevato a letter detailing why:

"Notwithstanding the fact that this matter involved litigation, the central issues encompass public policy regarding freedom of the press, constitutional freedoms and fair treatment of citizens by government," Byrnes wrote. "I hold that it is inappropriate for our City Council to be making policy on such matters behind closed doors."

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